Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, December 9, 2009

Hockett to Capretta

Hello All,

Many warm thanks to Robby for the kind thoughts on my earlier post, and for posting Mr. Capretta's reactions thereto.  I don't think that Mr. Capretta has managed to respond to the questions I directed to Dr. K, however -- doubtless owing to lack of clarity on my own part.  So I shall here attempt briefly to sharpen the points I attempted to make earlier, by addressing the observations offered by Mr. Capretta.

1.

Mr. Capretta first nicely characterizes my response to Dr. K's first criticism.  That response was to the effect that a complaint such as Dr. K's, directed as it was at the sprawling nature of the health care reform legislation now under debate, is effectively a complaint every piece of complex legislation drafted by our Congress since early in the 20th century.  For this Congress has long been riven by faction and, relatedly, beholden to an immense assortment of sectional interests.  That fact in turn is the product in part of our large, sprawling democracy and economy (have another look at Federalist 10), and in part of our perverse, plutocratic system of political campaign finance.  

Mr. Capretta does not appear to disagree with these observations -- at least he does not in his reply purport to do that -- but instead suggests that I have 'miss[ed] Krauthammer’s larger point.'  That larger point, Mr. Capretta goes on, is that 'the bills are much more unwieldy, complex, and bureaucratic because the authors start from the premise that the federal government has the capacity to centrally plan one-sixth of the American economy from Washington D.C.' 

If this was indeed Dr. K's point, then I must confess to having missed it.  It was better for Dr. K, however, that I did.  For this putative point, resting as it does upon a falsehood, is not really a point at all.  The reason is two-fold. 

The first reason is that, while the health care industry as a whole constitutes a large sector of the full economy, the health insurance industry does not constitute anywhere near so large a portion of the economy; and what we are talking about here is not 'health care reform' so much as it is health insurance reform.  To make that point plain, and to draw consequences of the fact, is part of the object of the forthcoming article to which I linked in the earlier post.  Congress is dealing with a classic social insurance problem right now, a problem that all of our peer nations did systematically and effectively literally decades ago.  One cannot begin to understand the nature of the problem until one first grasps that fact, and then, ideally, second, takes a hard look at how our peers have managed it -- that we might learn from both their failures and their successes.

The second reason that the point attributed by Mr. Capretta to Dr. K is no point at all is that there is no question of 'central planning' here, at least in the pejorative, 'Soviet'-reminiscent sense in which those who now employ this familiar 1920-1990 term of art appear to be traficking, at all.  The only sense in which something like 'planning' that is 'central' is at work here is the sense that Dr. K and Mr. Capretta would presumably applaud:  Congress is attempting to understand the likely systemic consequences of the sundry components of the legislation it is contemplating, debating, and amending even now.  Not to do that would be to proceed in reckless disregard of precisely such 'unintended consequences' as those about which Mr. Capretta in a later paragraph expresses concern.  The way to avoid unintended consequences is to work systematically and responsibly to foresee them, assign reasonable probabilities to them, amend to avoid them, and allow flexibility going forward to respond to them if and when they emerge.  Call that 'central' planning' if you like.  I call it 'responsible legislating.'

2.

Mr. Capretta next cites a paper from the conservative Heritage Foundation, and a presentation made at the conservative American Enterprise Institute, that purport to show that certain disparities and inequities in treatment are apt to result from the legislation then under discussion in the Senate.  He cites these as examples of the kind of unintended consequence that he credits Dr. K with fearing.  I've only four brief reactions to these citations. 

The first is that I have no idea whether this is the sort of thing Dr. K had in mind, as the Op Ed to which I directed my earlier questions afforded no guidance on this score. 

The second is that I am thus far incompetent to judge whether these consequences are really apt to follow on the legislation now under consideration, or whether, if so, they are justifiable.  Perhaps Mr. Capretta can say something about why the Senators themselves have not seen these alleged inequities and acted to rectify them.  I for my part will have to take time of my own to look into them. 

The third is that if in fact these two particular consequences are apt to follow, and if in fact they are unjustified, then it seems to me that the correct course of action is to bring this to the attention of legislators and call for amendment, rather than to throw hands in the air and say let's wait another 15 years before trying yet again to bring down health insurance costs and get health insurance to the now uninsured.  Please recall here my earlier point to the effect that Dr. K's proposed remedy -- burning the whole bill and scattering its ashes over a swimming pool -- simply is too much like lancing a blister with a chainsaw. 

Finally, my fourth reaction is to say thanks to Mr. C for helping to make a larger point that many besides me (including, I think, Dr. K in part) have tried to make elsewhere.  That is that we could simplify things considerably and avoid Baroque complexities (no disrespect intended to the Baroque, a wonderful period of cultural achievement) such as those deplored by Mr. C and Dr. K were we to revisit the curious decision not to allow single payer (per Canada) or single provider (per the UK) onto the agenda at all. 

The 'Medicare for All' proposal recently made by academic doctors in the Lancet and New England Journal of Medicine, or cognate proposals to extend to all who wish it the health plan enjoyed by Congress members themselves, would be a lovely place to start. 

3. 

Mr. Capretta next takes up Dr. K's 'out of a hat' charges, essentially repeating them under the heading of a new colorful simile:  Now Congress is said simply to have 'picked an arbitrary number and crossed their fingers.'  I'll accordingly repeat here what I said in reply to Dr. K:  If this is true -- and I ask again how the leveler of the charge purports to know it -- the remedy is that suggested above in my third reaction to point 2:  Don't burn the whole bill and scatter it over a swimming pool; tell Congress to do the modelling whose absence you are deploring.

4.

Mr. Capretta next defends Dr. K's trotting out of the familiar tort reform canard.  He does so by citing a CBO study to said to estimate that 'serious' tort reform could save up to $54 billion per annum.  There are several reaons why this is not responsive to my objection to Dr. K.

The first is that my point was not that the existence of a tort system does not result in costs faced by healthcare providers.  Any system of accountability brings costs.  (Imagine how much less expensive it would be to start and operate a gasoline station if you didn't have to pay all that money to avoid exposing those pesky neighbors to benzine contamination.)  The point I made, rather, was that all the empirical work out there -- notably that of Greg's, Eduardo's, Steve's and my colleage Ted Eisenberg, who is hardly a molotov cocktail throwing 'liberal' -- shows that the putative 'liability crisis' decried periodically since the early 1980s by lawyer-baiting conservatives simply does not exist, nor has it every existed.  Adjusted for inflation, tort damage awards have been constant in the aggregate for decades.

The second is that, even ignoring the injustice that would result to wrongfully harmed people, and the incentives to carelessness in respect of the lives and limbs of ourselves and our fellows that we would lock into place, were we arbitrarily to eviscerate our system of tort remedies -- a system we and our Roman and English legal forebears have had literally for centuries, since long before becoming Americans -- saving $54 billion over ten years would amount to saving quite literally a tiny fraction of the costs currently wrought by our system of health care insurance.  Since Mr. Capretta has seen fit to cite the CBO, I wonder what he has to say about the far greater savings that the selfsame CBO has attributed to the bills currently before Congress. 

Finally, the third point is that there is a structural similarity between the familiar 'tort reform' canard and the 'unnecessary tests' canard I addressed in my earlier post responding to Dr. K:  It is easy to opine in the abstract that 'tests' in the aggregate are overprescribed, or that 'damages' in the aggregate are overawarded.  A funny thing happens, however, when it is you who the doctor says ought to undergo tests, or when it is you whose colon now contains a scalphel inadvertently left by a surgeon.  And just as the same people who complain of too much testing or too many unnecessarty procedures are those who complain about 'rationing' (either by govt or by HMOs) when somebody suggests actually limiting these things, my bet is that any lawyer-hater who actually knows or has been the victim of a reckless or neglegent medical practice (I do) will complain about govt's 'getting between you and your lawyer'  the moment that Congress attempts to eliminate accountability from medical practice. 

5.

Mr. Capretta closes by reiterating Dr. K's endorsement of Senator McCain's campaign proposal that we establish something more uniform in the way of health insurance provision for all.  To that I say, as I did in my earlier post, hear hear.  Please note also that this would be quite in keeping with what I suggest above under heading 2.  One warning, however:  In proposing something as radical (in the best, 'roots'-y sense) as this, Mr. Capretta risks being accused of attributing to Congress competence to engage in ... yep, 'central planning.'  See last paragraph under heading 1, above.

6.

Let me close by observing, once more, something I observed in my response to Dr. K's Op Ed, something with which I have yet to see those who object to the current efforts underway in Congress engage: 

We regularly hear innuendos to the effect that Congress is attempting to meddle in a 'free market' and is in so doing apt to lower the quality of our health care, as well as introduce inequities and, perversely, raise costs.  But these people have yet, to my knowledge, to grapple with the fact that we do not presently enjoy a free market in health insurance, and indeed never will enjoy such a thing in light not only of the antitrust and additional federal regulatory exemption currently extended the health insurance companies under McCarran-Ferguson, but more intractably still of the 'natural monopoly' characteristics of health insurance.  Nor have these people ever yet, to my knowledge, addressed the embarrassing fact that, of the full list of 30 OECD countries -- our peers -- to which the US belongs, the US ranks 26th in the quality of its health outcomes, while ranking first in the costs that it shoulders.  It is no accident that these facts are both found together.  Nor is it an accident that these peer countries I reference also are precisely those that treat health insurance as what I have been asserting it to be -- a classic social insurance problem.  (For goodness sake, even Bismark, hardly a leftist, saw this!)  It is high time we did so as well, in order that we be no more than a century late in so doing.  And until we begin saying explicitly that it is not 'health care,' but health insurance that Congress is aiming to reform, we are not apt so much as to begin barking up the right tree.

Thanks again for listening,

Bob

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